Deciding Where Technology Ends and the Law Begins
by Dr. Robert Thibadeau
Technologists realize there is no ultimate technical solution to information security, just as there is no ultimate technical solution to prevent muggings. The law must step in, at some point, and draw the line where technology ends and the law begins. This article spells out a way planners think about and construct such law for cyberspace.
Cyberspace is surely the wild west of the twentieth century, and it is spreading from Internet to telephone and television. This land is a land of symbols, like the symbols that are words on this page, the dollar bills in your pocket or the stamps on an envelope. But it is a land of countless symbols, in countless variety, all moving about, interacting with one another, and cheaply accessed with a personal computer and modem.
Even though a world of symbols may seem alien, mankind, through dealings in money, government, and religion, has been finding ways to draw the legal line in the land of symbols for thousands of years. Let's assume there is nothing new in cyberspace except the variety of symbols and the speed of their manipulation.
Where, in law, should we look for guidance? Take a look at the "wild west" of capitalism. Capitalism flourishes when there is a heavy hand of the law: the old fashioned, steadfast, protection of property. Theft, the violation of individual ownership, is a very basic and old legal notion.
But don't confuse theft in the world of symbols with a violation of copyright law! I would argue people are prematurely worried about copyright, regulation or technical means for insuring ownership. Such things assume a consensus exists about who owns what in cyberspace, and how it can be owned. But where is this consensus?
In the lawless Internet today, the one activity one can commercially justify is giving stuff away free. This is a peasant act in a lawless land -- the abrogation of rights in order to survive. With property law for protection, value is created by the limitation to access. In the creation of value, the cost of property law pays for itself.
I believe we can learn from the oldest forms of symbolic property -- money and stamps. A coin or bill is a symbol for wealth, and a stamp declares rights and obligations. One dollar, one stamp, can be yours. The government, through theft laws, secures this right. As further service, the government protects the value of the money through counterfeit laws. There is only one authority that can print money and stamps.
But, the government does not, by law, guarantee a specific right to trade the property of a dollar with another property. While there are arguable exceptions. people recognize that the unrestricted freedom to set trade value is good, and that price regulation is not good. Think about communism. Price regulation tends to correlate with distortions of property ownership.
Property law on symbols are effective when the law has consensus. The question of where to draw the line is a human question, and humans must find comfort in the answers. If the answer gives the appearance of unduly constraining freedom or, alternatively, violating an ethical reserve, the line drawn will not be obeyed. The laws governing money and stamps are wonderful examples of laws that invigorate and incentivize free commerce, minimize government, and pay their own way.
Stamps in Cyberspace
Symbols in cyberspace can be similarly protected. Here is the recipe to think about deciding where technology ends and the law begins: Legally protect the ownership rights and obligations of a symbol, and let the symbol that stands for content declare the property rights expected for the content. Cyberspace symbols that need legal protection against theft and counterfeiting have the ancient form of stamps.
There can be many types of stamps. The cancel stamp the post office stamps on top of the postage stamp is a dependent label protected from misuse by law. It is illegal to open a letter that is stamped, cancelled, and labeled for somebody else's receipt. There is nothing "technical" here, stamps have to do with labels we might care to put on our messages.
A label or stamp in cyberspace cannot look distinctive, since the physical symbol is transient. However, as with dollars, the symbols must be globally unique. If I can print a cyberspace stamp that only I have the authority to print, then I can print something that, as a matter of the necessities of legal theory, looks a lot like money or postal stamps.
Such a globally unique labelling scheme has just recently been proposed for use in cyberspace by the "Header/Descriptor" working group of the Society of Motion Picture and Television Engineers, of which I am a member. We call our stamp a Label (capital "L"). Labels can provide the address on the message, and the return address on the message, the postage stamp on a message, the cancel stamp on the postage. But Labels are not restricted to just these types. Think about messages with possibly many different stamps. Think about stamps two hundred years ago -- when stamps regulated commerce. Dream about stamps in the cyberspace of tomorrow.
Labels are globally unique, but any authority can produce new Labels without asking permission. Labels achieve this seeming impossibility by the principle of successive authority. Parents name their children. Among Labels, there would be no other John Smith in the world, but the Smiths would not have to consult any other authority in order to name a son John. Like the name John Smith, a Label has its family name and name within the family, but unlike John Smith, our Label explicitly states all its authorities back to a global root, and, because of this, it is guaranteed to be globally unique.
An authority can create new and unique Labels by appending more Label information to the Label he now has. While people, organizations, and governments, can all mint their own Labels, the law should not protect all Labels equally. The fun is figuring out what Labels the law should protect, and how.
Copyright Protection in Cyberspace
Now, suppose we pass a law that says you can sell the message that your ownership stamp is on. This is one stamp for "you" and one stamp that claims this ownership. Furthermore, you cannot claim to own something you do not, in fact, own, and you cannot use anybody's personal stamp without their authority to do so. Now, suppose I encounter a message that says it is mine, but I know it is not mine. I report the false attribution as counterfeiting. Furthermore, I may encounter somebody elses stamp on a message I believe that I own. I can now attempt to show the theft.
A copyright may be ultimately be seen as a collection of permissions administered by different authorities. But I find the whole concept of a right to copy ill-advised in cyberspace. The machines that keep cyberspace running smoothly are constantly copying. It would be impossible, even it were well-advised, to keep track of all the 'illegal' copying that goes on.
Rather, suppose it were illegal for certain Labels to be removed from a message once placed on it, and that these Labels required permissions to read the message. This is like the law that says that it is illegal to read a letter or otherwise tamper with the U.S. Mail. We completely bypass copyright as a right to copy and change this to a right to read, a readright. So, if a message owner requires payment when his message is to be read, anyone reading the message must show he has obtained a stamp from the owner that provides the permission.
So, while technical means, such as encryption, may be used to verify a stamp's authenticity, or make it hard to illegally read the message, it is the stamp's owner that can ultimately state the permission. And, more importantly, it is the law that enforces such permission.
I believe that this implies copyright authorities that are somewhat unlike the existing ones. The recent action by international treaty that removes the need for a copyright notice is, in this view, ill-advised. If an author intends for his material to be restricted, he should indicate the rules for reading his work. Our group provides the means by which the U.S. government could authorize globally unique U.S. Government Readright Labels just like it prints U.S. Postage Stamps. Sanctions could exist against the fraudulent use of the Labels and against violating the Labels' asserted rights and obligations.
With the Internet we are close to something good. In the interest of civilizing the wild west of cyberspace, consider how to own something in that world, and keep it simple. So consider a vision, I own a message because my stamp is on it, and I let anybody read it, because I stamped it that way. I can sell you the message by making a serializing stamp for it, and now you own that instance of the message. That stamp does not allow you to sell more than just that one stamp. But, for that copy, you own it. ... I keeping thinking about all that software I bought that is owned by somebody else, and keep thinking something is fundamentally wrong, here, in the lawlessness of cyberspace.
Robert Thibadeau, Ph.D., is Director of Imaging Systems Laboratory in the School of Computer Science at Carnegie Mellon University (Internet address: firstname.lastname@example.org). The text has been abstracted from a more detailed paper by the same title, "Technical Report CMU-RI-TR-95-07, Robotics Institute, Carnegie Mellon University, Pittsburgh, PA 15213."
Copyright (c) 1995 Robert Thibadeau Sat Jan 28 1995